Asian Minerals & Ores Pte Ltd V Pembinaan Blt Sdn Bhd

  

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IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

 

(COMMERCIAL DIVISION) SUIT NO. D-37-27-2010

 

BETWEEN

 

ASIAN MINERALS & ORES PTE LTD „.JUDGEMENT

 

CREDITOR (JC)

 

AND

 

PEMBINAAN BLT SDN BHD

 

…JUDGEMENT DEBTOR (JD)

 

GROUNDS OF DECISION

 

This is the judgment of the court.

 

1. This is an application by the Judgment Debtor (JD) for a stay of execution of a writ of seizure and sale issued by the court on 16.4.2010 and also for a stay of the judgment dated 16.7.2009 (enclosure 13).

 

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Facts of the case

 

2. In this case, the Judgment Creditor (JC) supplied vessels to one Blackrock Corporation Sdn Bhd (“Blackrock”) pursuant to various charter party agreements. Due to Blackrock’s failure to pay JC’s outstanding charges, JC commenced action via Suit No. D8-22-2404-2008.

 

3. Due to concern that Blackrock may dissipate moneys prior to Judgment, JC applied and obtained a mareva injunction on 7.1.2009 which freezed the sum of RM3,353,797.58 in the hands of JD and which required JD to hold the said sum as stakeholders pending further order (“the Stakeholder’s Sum”).

 

4. JC continued to litigate the matter with Blackrock and on 16.7.2009 obtained judgment for RM4,856,111.68. The judgment also ordered the JD to release the Stakeholder’s Sum to the JC towards satisfaction of the judgment.

 

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5. The JD is not a party to Suit No. D8-22-2404-2008. Upon receiving service of the Judgment, JD agreed to release the Stakeholder’s Sum vide letter dated 24 July 2009.

 

6. However subsequently, the Judgment Debtor and SME Bank filed applications to intervene and set aside the Judgment dated 7.1.2009 and

 

16.7.2009 in Suit No. D8-22-2402-2008. The ground that JD and SME Bank have applied to set aside the Judgment is based on an assignment between Blackrock and SME Bank which requires JD to release the shareholder’s sum to SME Bank.

 

7. In the meantime, JC has applied for the issuance of the writ of seizure sale and the same was issued by the court on 10.4.2010.

 

8. The JD’s counsel in his application for a stay of the writ of seizure and sale contended that a stay should be granted as otherwise the JD’s application to intervene and to set aside the Judgment dated 7.1.2009 and

 

16.7.2009 would be nugatory. The JD relies on the following grounds to support his contention :

 

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(a) The alleged debt was one that was owing from Blackrock to the Judgment Creditor. The Judgment Debtor was not even made a party to the Civil Suit.

 

(b) The sum of RM3,353,797.58 from the Project monies, which the Judgment Debtor was compelled to hold as stakeholders by virtue of the said order, had been assigned absolutely by Blackrock to SME Bank, who is the true owners.

 

(c) The execution of the Writ of Seizure and sale would render the Judgment Debtor’s and SME Bank’s applications to intervene in Suit No. D8-22-2404-2008 nugatory.

 

9. In his reply, counsel for the JC argued that the main ground that JD has applied to set aside the Judgment is based on an assignment between Blackrock and SME Bank which requires JD to release the Stakeholder’s Sum to SME Bank. However by an order dated 16.7.2009, the court ordered the same to be released to the JC. He further stated that the JD has no right to continue to hold on to it.

 

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10. In my judgment, a successful litigant like the respondent who has obtained judgment in his favour, cannot be delayed from reaping the fruits of its litigation Serangoon Garden Estate Ltd. v Ang Keng [1953] MLJ 116.

 

11. The court can grant a stay provided there exists special circumstances to justify the stay. The special circumstances must be shown in relating to the enforcement of the judgment. Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd [2002] 3 CLJ 380 and Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd [2003] 4 CLJ 1 FC Affin Bank Bhd v Tan sri Kishu Tirathrai [2004] 3 CLJ 350.

 

12. In case of Kosma Palm Oil Mill Sdn Bhd & Ors. v Koperasi Serbausaha Makmur Bhd, Augustine Paul JCA stated that :

 

“It is therefore clear beyond doubt that there are many factors that may constitute special circumstances and the fact that an appeal would be rendered nugatory if stay was refused is the most common one. It is an example of special circumstances. In other words, special circumstances is the genus of which nugatoriness is a species. If it has been shown that an appeal would be rendered nugatory if stay

 

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was refused what it means is that a special circumstance has been established. Thus, they cannot be treated as separate heads and one cannot be an alternative to the other. Neither can one be accepted or rejected in favour of the other as they are inter-related”.

 

13. Applying the principle in Kosma Palm Oil Mill Sdn Bhd & Ors. v Koperasi Serbausaha Makmur Bhd, Abdul Malik Ishak J (now CJA) in Affin Bank Bhd v Tan Sri Kishu Tirathrai [2004] 3 CLJ 350 explained that the nugatory approach forms only part of the special circumstances approach. He further stated that ultimately special circumstances must still be made up in an application for a stay of execution of judgment

 

14. In applying the above said principle, I find that the reasons submitted by the JD cannot constitute special circumstances to warrant a stay nor do they show that the application to intervene and to set aside the judgment if successful, will be rendered nugatory.

 

15. In the present case, the application to intervene and to set aside the judgment is still pending and the JD still has the opportunity to contest it.

 

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16. Until the judgment is set aside the claim by the JD cannot be regarded as a disputed debt since it is in fact an enforceable judgment debt. Patel Holding Sdn Bhd v Estate Pekebun Kecil Sdn Bhd & Anor [1990] 2 CLJ (Rep) 611.

 

17. In this instant case, if the JD release the Stakeholder’s Sum to the JC as ordered by the court, the JD could avoid the execution of the writ of seizure and sale. The judgment made by the court is a monetary judgment and by its very nature, any enforcement levied on such judgment will not render the JD’s application to intervene and to set-aside nugatory. The JD has the option to settle the judgment debt and thus preventing execution proceedings and in the event his application to intervene and to set aside the judgment is successful, the Stakeholder’s Sum would either be refunded to him or to Sime Bank.

 

18. The JD has failed to establish by affidavit evidence that the JC would not be in a position to reimburse the Stakeholder’s Sum to JD or Sime Bank in the event the JD’s and Sime Bank’s succeed in their applications to intervene and to set aside the Judgment. Applying the principle in Kosma Palm Oil Mill v Koperasi Serbausaha Makmur Bhd I must assume that

 

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the JC is solvent and is in a financial position to pay JD or Sime Bank if it need be.

 

19. In order to avoid the enforcement of the writ of seizure and sale, the JD should settle and release the Stakeholder’s Sum forthwith as ordered by the court on 16.7.2009.

 

20. For the reasons above, I dismiss the JD’s application for stay in encl. (13) with costs.

 

Dated : 27 Mei 2010

 

(DATUK HANIPAH BINTI FARIKULLAH)

 

JUDICIAL COMMISSIONER HIGH COURT KUALA LUMPUR (COMMERCIAL DIVISION)

 

Aini/Grounds of Decision/D-37-27-2010/Words : 1,258

 

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